Notice under section 25 of the Landlord and Tenant Act 1954 — Form prescribed by the 1983 regulations — Notice given prior to the 1989 regulations — Whether notice valid — Forfeiture proceedings — Whether forfeiture proceedings prevented landlord serving section 25 notice — Claim by tenants as to invalidity of notice dismissed
The plaintiff tenants held a lease of business premises the contractual term of which expired on September 28 1989. In June 1988 the defendant landlords commenced proceedings for forfeiture of the lease and in July 1988 obtained judgment in default of notice of intention to defend. On March 8 1989 the judgment was set aside and directions given. On the same day the defendants served on the plaintiffs a notice under section 25 of the Landlord and Tenant Act 1954 using the form prescribed by the Landlord and Tenant Act 1954 Part II (Notices) Regulations 1983 (SI 1983/133). The notice stated that the landlords would oppose the grant of a new tenancy on the grounds set out in section 30(1)(a) and (c) of the 1954 Act. Following the expiration of the notice the landlords took possession of the premises on September 29 1989.
The plaintiffs contended that (1) the section 25 notice was void because it failed to comply with the requirements of section 25(5) in that, notwithstanding that the notice was in the form prescribed by the 1983 regulations, it failed to inform the tenants that they should notify the landlord in writing “whether or not” they were willing to deliver up possession on the termination date. The form prescribed by the 1983 regulations required the tenants to inform the landlords if they were not willing to deliver up possession. (2) The forfeiture proceedings previously commenced by the landlords prevented them from serving a section 25 notice.
Held The tenants’ claim was allowed.
1. The section 25 notice was valid. There was no circumstance in which a tenant could benefit from service of a counternotice saying that he was willing to deliver up possession; it might be positively detrimental to a tenant since it could not be retracted: see In re Grafton Street [1971] Ch 935. A counternotice might be of limited benefit to a landlord. In these circumstances section 25(1) of the 1954 Act was to be given a purposive and not a literal construction. If that was wrong the need to inform the tenant of the requirement to give a counternotice stating that he was willing to give up possession was a requirement which operated for the benefit of the landlord alone and could be waived or dispensed; it was waived or dispensed by the service of the notice in the then prescribed form: see Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850.
2. The landlords’ service of the section 25 notice was consistent with, not inconsistent with, a determination to bring the tenancy to an end by forfeiture proceedings; the landlords were therefore entitled to serve a section 25 notice after commencing forfeiture proceedings.
Edwin Johnson (instructed by Gasquet Metcalfe & Godwins) appeared for the plaintiffs; and Edward Cole (instructed by Cannons) appeared for the defendants.
